Saturday, February 05, 2011

SF DA Nancy Tung Misconduct Results in Dismissal of All Charges in DV Case

Recently I concluded a domestic violence case in SF after ADA Nancy Tung admitted that the prosecution was based on fabricated evidence. She waited until the jury was empanelled to do so, costing my innocent client 5 months in the county jail and his job. There follows my letter of complaint to Ms. Tung's supervisor which sets forth all the facts.

"This is the first such letter I have written in 31 years as an attorney. I try to overlook most examples of inappropriate behavior in the interest of not escalating conflict. Presently I am a felony conflicts attorney for the Bar Association of San Francisco. The prosecutorial misconduct in the above-referenced case is so egregious that I cannot help but call it to your attention.

My client, T. G., was arrested on charges of domestic violence on September 15, 2010. The alleged incident occurred during the night of 8/20 to 8/21, 2010. It was not reported by the CW until September 3, 2010. As far as I can tell your ADA Nancy Tung interviewed the CW, had her sent to a hospital for a physical and without further investigation filed felony charges against my client. Due to the exaggerated claims of ADA Tung bail was set at $100,000, a sum my client could not meet.

Mr. G. is a white male, 35 years old, small in stature with no previous criminal record (except a misdemeanor marijuana conviction from the state of Virginia when he was very young). He is committed to non-violence, founded a men’s group which focused on awareness of domestic violence and has lived peacefully in San Francisco since 1998. As a result of this unfounded prosecution he lost his job, his home and a 5 month chunk of his life.

From the beginning the defense asserted that the alleged victim was psychologically unstable, alcoholic and bent on revenge since Mr. G. broke off relations with her. She had stalked him at the restaurant where he worked until the SFPD was called in (Lieutenant Moore of the Richmond station has a vivid memory of the alleged victim’s instability. She was so concerned that she called the Berkeley [where the victim lived] mobile crisis unit on a 5150 suspicion.

Nevertheless when I tried to get ADA Tung to investigate these claims she adopted an attitude that “women never fabricate so I don’t believe you.” After a mighty struggle we obtained the phone records of both parties and provided copies to ADA Tung. These records showed several things which supported the defense theory of the case. The alleged victim had called Mr. G. between 345 and 60 times a day since their break up. On occasions when he would not answer she appeared the next morning at his San Francisco home. She was insanely jealous of his female roommate (who incidentally was a lesbian) and attacked her one evening as she got into her car.

More significantly the cell phone records showed that the two parties were not even in the same city the night of the alleged incident.

One would think that such information would cause ADA Tung to investigate the defense claims. She did not. She didn’t even read the cell phone records we gave her in mid-December. She plunged on ahead, insisting that Mr. G. was a danger to public safety and she wanted a felony against him.

After fruitless attempts to settle the case with ADA Tung, it came on for trial on January 25, 2011. A jury panel of 85 citizens (after hardships) was empanelled and pretrial motions heard. On January 27 we were scheduled to voir dire the jury. As it turned out the night before ADA Tung undertook for the first time an investigation of defense claims. She first of all ran a criminal history on her victim and found that she the victim had been arrested as the aggressor in a DV incident with another man in Berkeley in 2008. Until the eve of trial she had failed to run a comprehensive criminal history on the CW. Had this been done after the event was reported I believe it would have raised a red flag in the mind of an honorable prosecutor and led to an in depth investigation of the CW that would have persuaded her not to pursue Mr. G.

At this point ADA Tung began for the first time seeking verification of the defense story. Over the course of the night she discovered that each and every claim we had made were true. The next day, while 85 citizens waited in the hallway, Ms. Tung gave trial judge Bolanos a rambling 45 minute explanation of why she wanted to dismiss the case. By this time the MTC judge had gotten wind of this waste of judicial time and effort and demanded that ADA Tung request the dismissal in Dept 22. Again there followed a rambling incoherent speech which tended to say she could not have known earlier. Judge Lee recognized this statement for what it was and said “if Mr. Kaman could have discovered these facts you could have too.”

Judge Lee pronounced Mr. G. totally exonerated and apologized to him, a gesture ADA Tung did not have the grace to make. Judge Lee went on to say that if ADA Tung had tried this case she would have earned a not guilty verdict which would have been an embarrassment to Ms. Tung and the Office of the District Attorney.

While I am aware that prosecutors have total immunity in their charging function, this is not so with regard to their duty to investigate. ADA Tung has not only shamed herself she has opened up the City and County to a claim for damages which would be supported by case law. Shoddy investigation, or, in this case, none at all, rise to the level of prosecutorial misconduct which the law will not protect."

To date no response from my letter. Ironically the next week the same conduct repeated itself involving another defendant and ADA. That case was dismissed mid-trial when it turned out that the woman had fabricated the whole thing.

What's going on in the SF DA's domestic violence unit???


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